After the 2 World Wars, there was an immediate need to establish an institution that would have jurisdiction over matters such as invasion of other countries, bombardment, disruption of the sovereignty of another state etc. Thus, in the year 1998, 120 countries came together and adopted the Rome Statute (herein referred to as the Statute) which in turn established the International Criminal Court (herein referred to as ICC in the project). Under Article 5 of the Statute, all the crimes which were to be within the jurisdiction of the ICC, were explicitly mentioned, and one of them is Crimes of Aggression. Under Article 12 of the Statute all the states that have become party to the statute accept the ICC’s jurisdiction over such acts. But the only problem which was faced by these states is that till the year 2010 there was no proper definition of Crimes of Aggression. It was only in 2010 during the Kampala Review Conference that the state parties decided upon a proper definition of Crimes of Aggression.

It is under Article 8 bis of the Statute which tells us what Crimes of Aggression are, and the definition is as follows-
“For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[1]”

Even though we have the definition of Crimes of Aggression, but still it was only on 17 July 2018 that the ICC got the jurisdiction over these crimes. This happened because of the reason that in 2010 when the amendment took place, the state parties decided to wait for at least 30 nations to ratify such an amendment and then only did they decide to give the ICC the jurisdiction, thus, they had to wait till 17 July 2018 for the same. Hence, now ICC has got the jurisdiction over these matters finally.[2]

But in recent times what we have seen is that there is this new concept of war called the NEW WAR by British Academic Mary Kaldor. She says that today in this age, the Old Wars are declining and that there is a rise in the new wars like terrorism or in general the non state actors who have become very violent and thus they are committing atrocities on the civilians of other countries. Thus, she says that there is an urgent need to include the violent non-state actors in the definition of the Crimes of Aggression.

Crimes of Aggression-
It was after the Second World War, when the London Charter established the Nuremberg Tribunal that the waging of a war of aggression was criminalised. The Charter said that such crimes against peace should be criminalised.[3] Thus, the United Nations General Assembly (herein referred to as UNGA in the project) took these Nuremberg principles as International Law and said that waging of war against other states is no longer a right of the states and that waging of war is the new International Crime. Article 2(4) of the Charter of the UN clearly says that there will be a prohibition on the threat or use of force against the territorial integrity or political independence of any state. [4]

The definition of Crimes of Aggression as given by the Rome Statute can be divided into 3 important parts and these are follows-
1. The wrongdoer must be an individual (leader) with immense power to control the state military.
2. In order to punish the wrongdoer, it must be proved that he/she was involved in the planning, preparation, initiation or execution of such an act.
3. It is important that the act of the perpetrator should be an act of aggression as defined in the UNGA (XXXIX) of December 1974 and that when the act of aggression is judged by its character, gravity and scale then it is must be in violation of the United Nations Charter.[5]

Thus, the reason why Crimes of Aggression is differentiated from other forms of acts of aggression is that it is mainly dependant on the state action/involvement. Therefore, it is important to understand that in order to prosecute an individual for Crimes of Aggression, then it is necessary for the state to get involved which means it is either a state leader or an influencer who can control the state military.[6] This is the reason why Crimes of Aggression is also known as Leadership Crimes. An individual acting alone cannot be held responsible for Crimes of Aggression as per the Rome Statute.[7] A state can only use its military force during an act of self-defence or when it is sanctioned by the Security Council of the United Nations (UNSC).[8]

One of the most recent examples of territorial invasion by the military of a state is the Ukraine Invasion. What we have seen so far is that the Russian military has invaded Crimea which is a part of Ukraine. The rebels in Ukraine who were supporting the Russia government in Eastern Ukraine, thought that a Malaysian airline flying above their land was a missile by the protestors and thus shot it down, due to which all the passengers were killed. What the main question in this invasion is whether Putin (the Russian President) and the state is involved in such a crime of aggression and whether secretly or by proxy they are ‘substantially involved’? Even though Russia has not yet ratified the Statute, still due to this presence of an international law it can give Putin a reason to think and stop his actions.

 

The Concept of Old And New Wars-

According to the British Academic Mary Kaldor, due to the enactment of this Statute, nowadays the use of state military or the state actors using the military force is drastically reducing.[9] Due to the fact that there is a growing interconnectedness between the states regarding military, we are seeing less of wars which was rampant in the early 1900s. The type of wars prevalent in the early 20th Century is being termed as the Old war.[10]
But today in the 21st century we have the New War. When the non-state actors are being violent and causing mass destruction in other states by hurting the civilians of that state then this is being termed as the New War.[11] Kaldor says that this New War is actually based on identity politics. What she says is that due to globalisation in all the countries, there is a decrease in the state identity and rather an increase in the political grouping all around the world which are exclusive to some particular religion, culture, language, ethnicity etc. These groups are not just present in one state rather they are spread in different states.[12] It is because of this exclusive identity that they consider themselves as minority and imagine that other groups are a threat to them. Due to this difference in the ideas among these groups wars take place in which both the state and the non-state actors participate or sometimes it is only among these non-state actors. Example- ISIS group. These violent non-state actors (VNSA) are sometimes supported by the state governments themselves. These VSNAs can either be in support of the government or can be against the government. They are organised in such a manner that they become paramilitary forces which are similar to the state military.[13]

According to John Robb, the former United States counterterrorism operation planner, these new wars are somewhat different in technique from what has been mentioned in Article 8 bis of the Rome Statute. He says that new wars are not at all like the old wars where there is invasion in territory, ports, seas etc. These new kinds of wars are mainly targeting the civilians and this is through ‘system disruption’. Like disruption or sabotage of critical systems such as electricity, telecommunications, gas, water, or transport, which causes the system to collapse.[14] Another type of new war is the presence of the cyber warfare.

Cyber warfare is the common tool of the non-state actors today in this 21st Century. Due to huge technological development in all the countries, cyber attacks can effect lot many people at the same time.[15] The definition of Cyber warfare is- “The actions by a nation-state or international organization to attack and attempt to damage another nation’s computers or information networks through, for example, computer viruses or denial-of-service attacks.[16]” Such attacks could not only be used by terrorist organisations but also by multi national corporations to disrupt the national security, nations power grid, vital communications or national infrastructure.[17] One of the best known examples are- USA and its allies using cyber attacks to defend against major threats, such as nuclear ones, from countries like North Korea and Iran.[18]

Another interesting fact about the new wars is that today in this world, it is not only these terrorist organisations that are responsible for such wars, but also there are many corporations that are funding such terrorist organisations and also they are responsible for human rights violations in other states.[19] But sadly, according to the definition of Crimes of Aggression given in the Rome Statute read along with Article 25 of the same statute, we can clearly see that only when an individual has control over the state or state military then only he/she is responsible for such crimes. If the Rome Statute really wanted to prosecute all those individuals for such atrocities, then it should have included every wrongdoer be it state or the non-state. Allowing the aggression of a non-state actor go unpunished means Power has won over Reason, which is exactly not what the Nuremberg Trial wanted.[20]

There are many examples where huge multi-national corporations are indirectly involved in such crimes of aggression. Example-
1. In March 2017 a French-Swiss company named Lafarge Holcim accepted the fact that it had indirectly funded illegal armed groups in Syria in order to continue its operations there. The facts are that this company had one of its subsidiaries in Syria and that in order to keep its cement plant working, the company knew that its suppliers were paying extortion money to the IS, and thus turned a blind eye to its employees and customers who were being subjected to that extortion. Even though the company knew that IS was involved in war crimes and crimes against humanity but still it continued with its act.[21]

2. In June 2016 a criminal complaint was filed against Exxelia Technologies for their complicity in an alleged war crime. The complaint was about the fact that the company had sold a sensor to the Israeli Government with the full knowledge that it would be used in a missile fired in the course of Israeli military operations in Gaza.[22]

3. In another case, Frans van Anraat, was an industrialist who supplied chemical weapons components to Saddam Hussein. He was convicted in the Netherlands in 2005 as an accessory to war crimes committed against the Kurds in Iraq. The court said that he “knowingly and in pursuit of profit made an essential contribution to the Iraqi chemical weapons programme”. The court added: “His contribution enabled, if not facilitated, the execution of a large number of bombings of defenseless civilians using mustard gas”. [23]

Similarly, there are many more such cases where these corporations are involved with such terrorist organisations which has resulted in human rights violations and attacks on civilians of other states.
 

Non-State Actors And Crimes of Aggression-

So what has been understood so far is that it is really necessary to include the non-state actors in the definition of Crimes of Aggression.
The main reason behind the Nuremberg Trial was to make sure that all the perpetrators of crimes of aggression were to be punished. But what the Rome statute has done is, taken inspiration and the meaning of the words ‘Acts of Aggression’ from the UNGA which is now not suitable in the given situation or the circumstance. The UNGA which was formed in the year 1974 which in itself says that there was a dire need to make some changes in the definition of the words ‘Acts of Aggression’. Obviously, the legislators were not aware of the concept of cyber attacks nor were there huge multinational corporations in such a large scale who were indulging in such crimes of aggression.

The number of non-state actors and especially the VNSAs have increased today when compare to the earlier times. Hence, there was a need to include their violent actions that have effected millions of civilians across many countries in Article 8 bis of the Rome Statute.

Even though cyber warfare was not known at the time UNGA was enacted, but still in the year 2010 when the Kampala Review Conference was happening then, cyber attacks could have been made part of the definition for Crimes of Aggression. It is because of this omission that today Article 8 bis of the Rome Statute, is crippled as it is finding it difficult to prosecute individuals who are behind such attacks.[24] In such an age, today when there is a huge possibility that an entire nation can be attacked merely by cyber warfare, it is necessary that it should not be immune from the ICC investigation and prosecution. What the ICC should do is, differentiate between cyber attacks and using cyber self-defence measures in order to protect oneself so that only the perpetrator is condemned and not the protector. But the fact that the ICC is completely ignoring cyber attacks as a type of aggression is very dangerous.[25]

What is dangerous is that, these cyber attacks involve Computer Networks. These networks can cause serious physical injury, destruction or even death (e.g., when hitting hospitals, supplies, safety systems, etc.).[26] Therefore, these attacks should be considered as armed forces and brought within the reach of the general prohibition of use of force. When such attacks are being used as mere forms of coercion then they can termed as non-armed forces.[27] It is because of this reason, that cyber attacks using computer networks should be prohibited by the UNSC under Article 2 (4) of the UNSC. Hence, the Rome Statute committed a major mistake by adopting an outdated definition of ‘Acts of Aggression’.[28]

Despite the well known fact that many multi national corporations are involved either directly or indirectly in such wars of aggression, still the process to prosecute them in ICC is very difficult.[29] The Rome Statute instead of making the prosecution of such corporations easier has made it more difficult by treating the newly defined crime of aggression as a “special case when it comes to the criminal responsibility of transnational business corporations.[30]” Benjamin Ferencz, renowned scholar says that the reason why the Nuremberg Trials were held and then later the Rome Statute was enacted base on the principles of the Nuremberg Trials was mainly because they wanted to condemn the illegal war making and that they wanted to criminalise and prevent such actions which harmed the state sovereignty as well as the territorial integrity.[31] Even though it is good step by the legislators to criminalise such acts but the sad part is that it has already been so many years that the law has been made yet it was still not in enforcement till July 2018 and that too the only a small portion of the perpetrators are being condemned whereas every wrongdoer should be prosecuted be it a state or a VSNA.

When Article 25 of the Rome Statute is read then what is understood is that it is necessary for the state military or the state in general to have given orders etc, to the individual in order to prosecute him under Article 8 of the Rome Statute. Hence, it is extremely difficult to prosecute a non-state and non-military official for acting as accessories to the crime of aggression, because it would be difficult to find that such non-officials were in a position to issue directions to state organs or to the military, or to enforce the carrying out of operations.[32] Also, the Nuremberg Trial wanted the non-state actors or the on-officials without state power to be prosecuted equally and similarly like that of the state actors.

This can be seen in the judgement when of the judges to the Nuremberg Tribunal wrote, “There must be not merely nominal, but substantial participation in and responsibility for activities vital to building up the power of a country to wage war. To establish the requisite criminal intent, it seems necessary to show knowledge.[33]” Hence, these were the two essential elements to establishing criminal liability for aggression. Thus, Article 25 says that actus reas as well as mens reas are both equally necessary to prosecute a person for Crimes of Aggression but sadly the other condition that has to be fulfilled at the same time is the power or capacity of the individual to influence the state or its military.[34] The crime of aggression should not be a “special case” in which only a few types of individuals are being condemned. The entire purpose of the Rome Statute was to ensure “that the most serious crimes of concern to the international community as a whole [do] not go unpunished” and “put[ting] an end to impunity for the perpetrators of these crimes and thus [contributing] to the prevention of such crimes.” If the Rome Statute aims not only protect the sovereignty of states but also something more than that, then it is necessary that the Crime of Aggression be defined to implicate more than just those individuals in positions to control or direct state or military action. Without addressing the role of VSNAs Crimes of Aggression, a vast accountability gap will continue to exist. As the bar for liability for corporate actors is already set high, it should be kept in mind that this bar should not be made even higher.[35]

Conclusion-
This concept of Crimes of Aggression has been there since the Nuremberg Trial, but it was not until 2010, when the Kampala Review Conference that took place where finally the definition of Crimes of Aggression was decided. But still it was not until 2018 July that only 30 countries ratified the amendment in the Rome Statute and now finally the ICC has got jurisdiction over such matters. But the sad part is that according to the definition of Crimes of aggression as given in the Rome Statute, only the individuals who have influence over the state military can be prosecuted. Which means that nonstate actors are not be prosecuted under this head by the ICC. With the rise in the violence by the non-state actors in the world there is an urgent need to include them in the definition. There are so many different types of acts of aggression committed by the non-state actors that are not even included in the definition of ‘Acts of Aggression’ as given in the Rome Statute Article 8 bis. This cannot be ignored and thus the Statute has to be amended again. The problem faced by the ICC during such a prosecution would be that only 34 countries have ratified so far and the rest have not. So, the problem comes when a non-member of the ratification commits a crimes of aggression then the ICC does not have jurisdiction over it. Hence, what is needed is, that all the countries should be a part of it so that no country is left unpunished due to its acts. As we have seen that all the invasions of the USA in Iran and rest other countries have been left unpunished so far due to the fact that the Rome Statute was not in power at that time. But now with the ratification, it has come into power thus, all the world leaders will have to think twice before invading other states’ lands or before disrupting its sovereignty, integration etc. But all the problems related to Crimes of Aggression will only be solved when both state actors and non-state actors will be included in the definition and also when all the possible acts of crimes of aggression will included so that there are no loopholes left behind for the perpetrators to take advantage of.

End-Notes
[1] Rome Statute of the International Court ( 17 July 1998)
[2] Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression, Blog of the European Journal of International Law, 15 December 2017
[3] Anouk T. Boas, The Definition of Crime of Aggression and its relevance for Cotemporary Armed Conflicts, International Criminal Database, ICD Brief 1 June 2013
[4] Ibid
[5] What is the Crime of Aggression?, Justice Hub, 19 March 2015, https://justicehub.org/article/q-what-crime-aggression
[6] Supra Note 5
[7] Ibid
[8] Ibid
[9] Supra Note 3
[10] Ibid
[11] Ibid
[12] Ibid
[13] Supra Note 3
[14] Ibid
[15] Christian Morresi, The Impact of New Forms of Aggression on International Law, https://tesi.luiss.it/20225/1/626962_MORRESI_CHRISTIAN.pdf
[16] Ibid
[17] Ibid
[18] David Scheffer, The Missing Pieces in Article 8 bis (Aggression) of the Rome Statute, Harvard International Law Journal, Volume 58, Online Journal, Spring 2017
[19] MacKennan Graziano and Lan Me, The Crime of Aggression under the Rome Statute and Implications for Corporate Accountability, Harvard International Law Journal, Volume 58, Online Journal, Spring 2017
[20] Ibid
[21] Katherine Tyler, Prosecuting companies for crimes against humanity, The Law of Nations Blog, 13 April 2017
[22] Supra Note 21
[23] Ibid
[24] Supra Note 18
[25] Supra Note 18
[26] Supra Note 15
[27] Ibid
[28] Ibid
[29] Supra Note 19
[30] Ibid
[31] Ibid
[32] Supra Note 19
[33] Ibid
[34] Ibid
[35] Ibid